©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law 6 th Edition Chapter 6 Criminal Law and Cyber Crimes

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 2 Civil vs. Criminal Law Major differences: Civil (Tort)Criminal PreponderanceBeyond Reasonable Doubt DamagesJail or Prison Private injury (parties hire their own attorneys) Public injury (Prosecutor represents society)

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 3 FeloniesMisdemeanors Serious crimes, punishable by Death or prison for more than one (1) year. Non-serious (petty) crimes punishable by jail for less than one(1) year and/or by fines. Classification of Crimes A criminal act can also have civil liability. (Remember the O.J. Simpson trials?)

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 4 Criminal Liability To be convicted of a crime, the State must show beyond a reasonable doubt that the Defendant: –Performed an illegal act (actus reus) AND –While performing the act, had the required intent or specific state of mind (mens rea). –Without the required intent there can be no conviction. To be convicted of a crime, the State must show beyond a reasonable doubt that the Defendant: –Performed an illegal act (actus reus) AND –While performing the act, had the required intent or specific state of mind (mens rea). –Without the required intent there can be no conviction.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 5 Corporate Criminal Liability A corporation is a legal “person.” A corporation can be fined or denied legal privileges (license) for criminal activity. Responsible Corporate Officer: officers and directors can be criminally liable. –Case 6.1 United States v. Hanousek (1999). A corporation is a legal “person.” A corporation can be fined or denied legal privileges (license) for criminal activity. Responsible Corporate Officer: officers and directors can be criminally liable. –Case 6.1 United States v. Hanousek (1999).

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 6 Types of Crimes Violent Crimes: –Crimes against persons (murder, rape). –Robbery is a violent crime. Property Crimes - Most common, involves money or property. –Burglary. –Larceny. –Receiving Stolen Goods. –Arson. –Forgery. Violent Crimes: –Crimes against persons (murder, rape). –Robbery is a violent crime. Property Crimes - Most common, involves money or property. –Burglary. –Larceny. –Receiving Stolen Goods. –Arson. –Forgery.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 7 Types of Crimes White Collar Crimes: non-violent crimes involving a business transaction. –Embezzlement. –Mail and Wire Fraud. –Bribery. –Theft of Trade Secrets. –Insider Trading. Organized Crime – RICO and Money Laundering. White Collar Crimes: non-violent crimes involving a business transaction. –Embezzlement. –Mail and Wire Fraud. –Bribery. –Theft of Trade Secrets. –Insider Trading. Organized Crime – RICO and Money Laundering.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 8 Defenses to Criminal Liability Infancy (juvenile). Involuntary Intoxication: is a defense if person was incapable of understanding act. Insanity: defendant lacked substantial capacity to appreciate the wrongfulness of act or to conform act to law. Mistake. Consent. Infancy (juvenile). Involuntary Intoxication: is a defense if person was incapable of understanding act. Insanity: defendant lacked substantial capacity to appreciate the wrongfulness of act or to conform act to law. Mistake. Consent.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 9 Defenses to Criminal Liability Duress. Justifiable Use of Force: use deadly force if reasonable belief of immanent death or serious injury; cannot use deadly force to protect property alone. Entrapment. Statute of Limitations. Immunity. Duress. Justifiable Use of Force: use deadly force if reasonable belief of immanent death or serious injury; cannot use deadly force to protect property alone. Entrapment. Statute of Limitations. Immunity.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 10 Constitutional Safeguards Fourth Amendment Protections. –Search Warrants and Probable Cause. –Officer must have “Probable Cause”: Trustworthy Evidence to Convince A Reasonable Person. –The warrant must be precise: no ‘general’ warrants (fishing expedition). –Exceptions to Warrant. Fourth Amendment Protections. –Search Warrants and Probable Cause. –Officer must have “Probable Cause”: Trustworthy Evidence to Convince A Reasonable Person. –The warrant must be precise: no ‘general’ warrants (fishing expedition). –Exceptions to Warrant.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 11 Search and Seizure in Businesses. –Marshall v. Barlow’s Inc. (1978): Generally, government cannot enter business without a warrant. –No warrant required for contaminated food or highly regulated liquor or gun businesses. Search and Seizure in Businesses. –Marshall v. Barlow’s Inc. (1978): Generally, government cannot enter business without a warrant. –No warrant required for contaminated food or highly regulated liquor or gun businesses. Constitutional Safeguards

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 12 Constitutional Safeguards Fifth Amendment Protections. –Due Process of Law. Opportunity to Object. Hearing before a neutral Magistrate. –Double Jeopardy. Person cannot be retried for the same offense in the same court. Civil action, however, is permitted. –Self-Incrimination. “Right to Remain Silent” or not testify against yourself. Fifth Amendment Protections. –Due Process of Law. Opportunity to Object. Hearing before a neutral Magistrate. –Double Jeopardy. Person cannot be retried for the same offense in the same court. Civil action, however, is permitted. –Self-Incrimination. “Right to Remain Silent” or not testify against yourself.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 13 Constitutional Safeguards Sixth & Eight Amendment Protections. –Right to Speedy Trial. –Right to Jury Trial. –Right to Public Trial. –Right to Confront Witnesses. –Right to Counsel. –Prohibition on Cruel and Unusual Punishment. Sixth & Eight Amendment Protections. –Right to Speedy Trial. –Right to Jury Trial. –Right to Public Trial. –Right to Confront Witnesses. –Right to Counsel. –Prohibition on Cruel and Unusual Punishment.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 14 Constitutional Safeguards Exclusionary Rule. –Evidence obtained in violation of constitutional procedures must be excluded –Evidence derived from illegal evidence is “fruit of the poisonous tree.” Deters police from misconduct. –Case 6.2 People v. McFarlan (2002). ‘Miranda’ Rule. –Inform suspect of his rights. Exclusionary Rule. –Evidence obtained in violation of constitutional procedures must be excluded –Evidence derived from illegal evidence is “fruit of the poisonous tree.” Deters police from misconduct. –Case 6.2 People v. McFarlan (2002). ‘Miranda’ Rule. –Inform suspect of his rights.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 15 Criminal Process Arrest Initial Appear Booking Charges Filed Prelim Hearing Arraign- ment Plea Bargain Trial Guilty Plea

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 16 Criminal Process Indictment or Information. –Indictment issued by a grand jury in secret, usually for very serious crimes. –Information is a criminal complaint issued by prosecutor’s office and served on accused. Trial: unanimous verdict. Sentencing. –Case 6.3 United States v. Scott (2003). Indictment or Information. –Indictment issued by a grand jury in secret, usually for very serious crimes. –Information is a criminal complaint issued by prosecutor’s office and served on accused. Trial: unanimous verdict. Sentencing. –Case 6.3 United States v. Scott (2003).

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 17 Cyber Crime Cyber crimes involve the use of computers in cyberspace to injure a person or property. Cyber Theft: –Financial Crimes. –Identity Theft. Cyber Stalking. Cyber crimes involve the use of computers in cyberspace to injure a person or property. Cyber Theft: –Financial Crimes. –Identity Theft. Cyber Stalking.

©2005 by West Legal Studies in Business A Division of Thomson Learning Fundamentals of Business Law Miller Jentz 6 th Ed. 18 Cyber Crime Hacking. Cyber Terrorism. Prosecuting Cyber Crimes: –Location of the crime raises jurisdictional issues. –Identification of offenders is difficult. –Federal Statues: Computer Fraud and Abuse Act, Economic Espionage Act and RICO. –Case 6.4 United States v. Middleton (2000). Hacking. Cyber Terrorism. Prosecuting Cyber Crimes: –Location of the crime raises jurisdictional issues. –Identification of offenders is difficult. –Federal Statues: Computer Fraud and Abuse Act, Economic Espionage Act and RICO. –Case 6.4 United States v. Middleton (2000).